CHAPTER 21 THE USS MANHATTAN REVISITED: RUSSIAN POLICY ON ARCTIC SEA PASSAGE, AND IMPLICATIONS FOR FREEDOM OF NAVIGATION
| Jurisdiction | Derecho Internacional |
(Apr 2013)
THE USS MANHATTAN REVISITED: RUSSIAN POLICY ON ARCTIC SEA PASSAGE, AND IMPLICATIONS FOR FREEDOM OF NAVIGATION
Senior Legal Counsel
Shell International BV
The Hague
REG FOWLER is a senior legal counsel with Shell International BV, based in The Hague, the Netherlands. Over the last 11 years, he has worked in the Shell oil trading and shipping division in London, taking a special interest in international conventions relating to oil pollution and liability. More recently, he has focused on oil and gas transportation and marketing in the Commonwealth of Independent States, particularly Russia and Kazakhstan. Prior to Shell, Reg worked for Agip and Atlantic Richfield, principally on UK North Sea gas projects. He speaks and reads Russian and his family lives in Moscow.
This paper will consider the impact of the expected loss of the permanent polar ice cap in terms of the United Nations Convention on the Law of the Seas and the freedom of navigation the Convention intended to protect. It will analyse the legislative steps already taken by the Russian Federation in the development of the Northern Sea Route and the protection of its Arctic marine interests. It will propose that the international community develops comprehensive vessel and navigation standards for the Arctic so that the Russian Federation does not consider that its vital interests are threatened by the continuing exercise of the freedom of navigation in a rapidly melting ocean.
In 1969, a specially built, ice strengthened tanker the USS Manhattan tried, and failed, to navigate the Arctic waters of Canada from Prudoe Bay in Alaska to the Atlantic. It did not deserve the reputation it won as a diplomatic incident between United States and Canada; it was not an unannounced infringement of Canadian sovereignty.1 The tanker did sail through what were then understood to be waters within 12 nautical miles of Canadian sovereign islands and it did encourage Canada to rethink the protection of its neighbouring Arctic waters against marine pollution, to assert claims to territorial waters around the 19000 islands comprising Canada's Arctic archipelago, and to assert the right to control international shipping within those sea areas.2
There have been two vitally important changes since that time. Firstly 164 independent states3 have ratified the United Nations Convention on the Law of the Seas ("UNCLOS"); secondly, climate change eroding the remaining permanent polar ice cap is accelerating to the point where the ice cap may melt entirely within a generation. Contrary to alarmist stories in the media, the loss of a polar ice cap will not itself substantially alter sea levels; ice displaces its own weight in water, such that when melted, the volume of water occupies the same surface area, but with no noticeable change in the height of the relevant water column. For this reason, this paper does not need to review how the sea/land boundaries along the shores of the Arctic may change.
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The dramatic and imminent change in question is altogether different. Between Canadian and American territories and the North Pole, permanent ice has established itself since the last ice age, oscillating in depth with seasonal changes, but always retaining a core of unmelted ice year on year. Permanent ice is more than just long-lasting ice; it is formed when fresh ice gives up dissolved air and pockets of brine, forming strata as rigid as concrete. Prevailing Arctic winds have ensured that such permanent ice has concentrated in the Canadian rather than the Russian sector of the Arctic
Figure 1: A forecast of Arctic ice cover 2006; source: www.piroda.su
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Ocean. The Gulfstream by contrast has kept the Norwegian and Western Russian sectors of the Arctic Ocean substantially ice free as far as the Kara Gates.4 As a result, the Soviet and now the Russian merchant navies have been able to pioneer the Northern Sea Route, along the Russian shores of the Arctic, exploiting the fact that summer and autumn temperatures cause Arctic ice to withdraw from the Russian Arctic shoreline, such that no permanent ice develops there. For good reason, the Russian Federation now looks forward to the opportunity to offer year-round navigation services to international shipping from the Behring Straits to the Barents Sea and back. Caught between the extent of permanent ice and the Russian shoreline, such international shipping presently has to use Russian territorial waters or at least waters within the Russian Exclusive Economic Zone as defined in accordance with UNCLOS.5 The next section of this paper will look at how the Russian Federation plans to regulate, defend and prosper by the Northern Sea Route. It will consider the challenge Russia faces in striking a balance between its UNCLOS obligations and its right to protect its sovereign marine economic resources.
The world has reached an extremely unusual point in its history. For once, a fundamental and long-lasting geophysical change is about to happen, having been foreseen. Fernard Braudel, the historian of the Mediterranean Sea in the Middle Ages,6 and founder member of the Annales school of historians, took a particular interest in the effect of slow and imperceptible geophysical changes on human social and economic history - matters such as the silting of ports or the changing the river channels. He described these changes as "longue durée", to be contrasted with the noteworthy political events of recorded history, which he termed "courte durée". Braudel's work showed how processes of long duration could be seen with historical hindsight to have contributed to immediate political change. The loss of permanent Arctic ice will be an event of "longue durée", a natural process with anthropogenic origins, but having immediate political significance now and perceptible economic impact in the future.
The second section of this paper wilt ask whether UNCLOS can still provide a meaningful framework for the regulation of the exploitation of the Arctic Ocean for shipping, in waters which are seasonally navigable in their entirety, and which will offer not one, but tens or even hundreds of different shipping routes between the Barents and the Behring Seas. Much of the Arctic Ocean comprises what UNCLOS designates as the part of the high seas, which it seeks to reserve for the common benefit of humankind. Clearly, freedom of navigation must be exercised with extreme caution in the high Arctic Ocean; the Ocean will never be truly ice free, but a dangerous and unpredictable soup of growlers and bergy bits.7 The potential for collisions and pollution will arguably be greater than it presently is, because the ice will be more mobile and the high seas of the Arctic will be beyond the legal control and practical reach of the search and rescue resources of the Arctic States. Such waters may be open to navigation by vessels which can reach those waters without having to navigate the territorial waters of Arctic states that have already enacted legislation enforcing vessel standards appropriate for the Arctic.
UNCLOS was not drafted to address an Ocean where the normal shipping routes might move from season to season. However, if shipping seeks to exploit the uncertainties of interpretation which then arise, the Arctic States may respond by jointly or individually taking steps to restrict freedom of navigation, upsetting the balance of interests that UNCLOS tries to enshrine. The third section of this paper will argue that UNCLOS can provide a framework for the ongoing regulation and protection of the Arctic Ocean, provided that the Arctic states are allowed and encouraged to introduce a single standard of vessel safety and navigation for the region, which all signatories to UNCLOS should adopt in the interests of retaining their freedom of navigation in a newly accessible, but perilous ocean.
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Mare nostrum; Regulation of Russian Arctic waters
In the last nine months, the Russian Federation has made significant changes to the legislation applicable to its territorial waters and Exclusive Economic Zone in the Arctic Ocean. To put these changes in context, it is valuable to understand the historical trajectory of Russia in the Arctic. In the 20th century the Soviet Union surpassed the United States and Canada in its exploration and exploitation of the Far North. Commercial shipping along the Northern Sea Route began in the 1920s. Soviet ambitions in the Arctic were certainly ambitious; in 1926, the Presidium of the Central Executive Committee of the USSR made a declaration in the following terms:
"All lands and islands, both discovered and which may be discovered in the future, which do not comprise the time of publication of the present decree the territory of any foreign state recognised by the government of the USSR, located in the northern Arctic Ocean, north of the shores of the Union of Soviet Socialist republics up to the North Pole between Meridian 32o 04 min 35 E. from Greenwich., and the Meridian 168o 49 min 30 seconds from Greenwich., are declared to be the territory of the USSR".8
Its atomic icebreaker fleet was a symbol of Soviet pride, almost on a par with Soviet space missions In 1977, the second generation atomic icebreaker "Arctika" reached the North Pole.
Figure 2: The Northern Sea Route from Dunlap 1996
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The Soviet Union was an active participant in the 4th UN Conference on the Law of the Sea is which resulted in the UNCLOS Convention in 1982. It suited its Cold War strategies to be seen to cooperate with developing countries in the evolution of the New World order, at least in marine terms. However, as Gladyshev points out, the Soviet Union maintained a policy of stealthy expansion of its Arctic interests; in 1970 a Politburo resolution recommended proceeding...
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